Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Rules and Regulations 38047 

List of Subjects in 48 CFR Part 204 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 204 continues 

to read as follows: 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 1. The authority citation for 48 CFR 

part 204 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Revise section 204.7005 to read as 

follows: 

204.7005 Assignment of order codes. 

(a) Defense Procurement and 

Acquisition Policy, Program 

Development and Implementation, 

maintains the order code assignments 

for use in the first two positions of an 

order number when an activity places 

an order against another activity’s 

contract or agreement (see 

204.7004(d)(2)). 

(b) Contracting activities shall follow 

the procedures at PGI 204.7005 for 

requests for assignment of or changes in 

two-character order codes. 

[FR Doc. 2011–16320 Filed 6–28–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212 and 222 

RIN 0750–AH34 

Defense Federal Acquisition 

Regulation Supplement; Extension of 

Restrictions on the Use of Mandatory 

Arbitration Agreements (DFARS Case 

2011–D035) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

implement section 8102 of the DoD and 

Full-Year Continuing Appropriations 

Act, 2011 and similar sections in 

subsequent appropriations acts, to 

extend the restriction on the use of 

mandatory arbitration agreements, when 

awarding contracts that exceed 

$1 million, to use of 2011 and 

subsequent fiscal year funds 

appropriated or otherwise made 

available by this Act or any subsequent 

DoD appropriation act. Section 8102 

allows the Secretary of Defense to waive 

applicability to a particular contractor 

or subcontractor, if determined 

necessary to avoid harm to national 

security. 

DATES: Effective date: June 29, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 8102 of the DoD and FullYear Continuing Appropriations, 2011 

(Pub. L. 112–10), prohibits the use of 

Fiscal Year (FY) 2011 funds for any 

contract (including task or delivery 

orders and bilateral modifications 

adding new work) in excess of 

$1 million, if the contractor restricts its 

employees to arbitration for claims 

under title VII of the Civil Rights Act of 

1964, or tort related to or arising out of 

sexual assault or harassment, including 

assault and battery, intentional 

infliction of emotional distress, false 

imprisonment, or negligent hiring, 

supervision, or retention. 

This rule does not apply to the 

acquisition of commercial items. 

Section 8102(b) requires the contractor 

to certify compliance by subcontractors. 

Additionally, enforcement of the 

mandatory arbitration provisions related 

to the covered areas, does not affect the 

enforcement of other aspects of an 

agreement that is not related to those 

areas. 

This rule allows the Secretary of 

Defense to waive applicability to a 

particular contract or subcontract, if 

determined necessary to avoid harm to 

national security. 

Section 8102 of the DoD and FullYear Continuing Appropriations, 2011, 

extends the restrictions of section 8116 

of the Defense Appropriations Act for 

Fiscal Year 2010 (Pub. L. 111–118). In 

implementing section 8116, public 

comments were obtained under DFARS 

Case 2010–D004. 

This final rule does not constitute a 

significant DFARS revision as defined at 

FAR 1.501–1 because the requirements 

are already in place and this final rule 

merely extends the existing DFARS 

coverage. Therefore, there is no 

significant cost or administrative impact 

on contractors or offerors resulting from 

issuance of this rule and public 

comment is not required in accordance 

with 41 U.S.C. 1707(a). 

Since DoD anticipates that this will be 

an ongoing requirement, this rule 

applies to use of all subsequent fiscal 

year funds appropriated or otherwise 

made available under subsequent DoD 

appropriations acts. If the restriction is 

removed at a future date, DoD will 

amend the DFARS accordingly. 

II. Executive Orders 12866 and 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This is a 

significant regulatory action and, 

therefore, was subject to review under 

section 6(b) of Executive Order 12866, 

Regulatory Planning and Review, dated 

September 30, 1993. This rule is not a 

major rule under 5 U.S.C. 804. 

III. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule. This final rule 

does not constitute a significant DFARS 

revision within the meaning of FAR 

1.501 and public comment is not 

required in accordance with 41 U.S.C. 

1707. 

IV. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 212 and 

222 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 212 and 222 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 219 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Amend section 212.503 by revising 

paragraph (a)(xi) to read as follows: 

212.503 Applicability of certain laws to 

Executive Agency contracts for the 

acquisition of commercial items. 

(a) * * * 

(xi) Section 8116 of the Defense 

Appropriations Act for Fiscal Year 2010 

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38048 Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Rules and Regulations 

(Pub. L. 111–118) and similar sections 

in subsequent DoD appropriations acts. 

* * * * * 

■ 3. Amend section 212.504 by revising 

paragraph (a)(xix) to read as follows: 

212.504 Applicability of certain laws to 

subcontracts for the acquisition of 

commercial items. 

(a) * * * 

(xix) Section 8116 of the Defense 

Appropriations Act for Fiscal Year 2010 

(Pub. L. 111–118) and similar sections 

in subsequent DoD appropriations acts. 

* * * * * 

Subpart 222.74—Restrictions on the 

Use of Mandatory Arbitration 

Agreements 

■ 4. Revise section 222.7400 to read as 

follows: 

222.7400 Scope of subpart. 

This subpart implements section 8116 

of the Defense Appropriations Act for 

Fiscal Year 2010 (Pub. L. 111–118) and 

similar sections in subsequent DoD 

appropriations acts. 

■ 5. Amend section 222.7402 as follows: 

■ (a) Revise the introductory text to 

paragraph (a) as set forth below; and 

■ (b) Revise paragraph (b) as set forth 

below. 

222.7402 Policy. 

(a) Departments and agencies are 

prohibited from using funds 

appropriated or otherwise made 

available by the Fiscal Year 2010 

Defense Appropriations Act (Pub. L. 

111–118) or subsequent DoD 

appropriations acts for any contract 

(including task or delivery orders and 

bilateral modifications adding new 

work) in excess of $1 million, unless the 

contractor agrees not to— 

* * * * * 

(b) No funds appropriated or 

otherwise made available by the Fiscal 

Year 2010 Defense Appropriations Act 

(Pub. L. 111–118) or subsequent DoD 

appropriations acts may be expended 

unless the contractor certifies that it 

requires each covered subcontractor to 

agree not to enter into, and not to take 

any action to enforce, any provision of 

any agreement, as described in 

paragraph (a) of this section, with 

respect to any employee or independent 

contractor performing work related to 

such subcontract. 

■ 6. Revise section 222.7405 as follows: 

222.7405 Contract clause. 

Use the clause at 252.222–7006, 

Restrictions on the Use of Mandatory 

Arbitration Agreements, in all 

solicitations and contracts (including 

task or delivery orders and bilateral 

modifications adding new work) valued 

in excess of $1 million utilizing funds 

appropriated or otherwise made 

available by the Defense Appropriations 

Act for Fiscal Year 2010 (Pub. L. 111– 

118) or subsequent DoD appropriations 

acts, except in contracts for the 

acquisition of commercial items, 

including commercially available offthe-shelf items. 

[FR Doc. 2011–16315 Filed 6–28–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212 and 252 

RIN 0750–AH27 

Defense Federal Acquisition 

Regulation Supplement; Pilot Program 

for Acquisition of Military-Purpose 

Nondevelopmental Items (DFARS Case 

2011–D034) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

to amend the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 866 of 

the National Defense Authorization Act 

for Fiscal Year 2011. Section 866 

authorized the Secretary of Defense to 

establish a pilot program to assess the 

feasibility and advisability of acquiring 

military-purpose nondevelopmental 

items in accordance with the 

streamlined procedures of the pilot 

program. 

DATES: Effective Date: June 29, 2011. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before August 29, 2011, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2011–D034, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘DFARS Case 2011–D034’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2011– 

D034.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2011– 

D034’’ on your attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2011–D034 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations Council, Attn: Mr. Manuel 

Quinones, OUSD(AT&L)DPAP(DAR), 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Instructions: Please submit comments 

only and cite ‘‘DFARS Case 2011–D034’’ 

in all correspondence related to this 

case. All comments received will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Manuel Quinones, telephone 703–602– 

8383. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 866 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2011 (Pub. L. 111–383), 

enacted on January 7, 2011, authorized 

the Secretary of Defense to carry out a 

pilot program to assess the feasibility 

and advisability of acquiring militarypurpose nondevelopmental items in 

accordance with the streamlined 

procedures of the pilot program. The 

authority for this pilot program expires 

on January 6, 2016. Under this pilot 

program, DoD may enter into contracts 

with nontraditional defense contractors 

for the purpose of— 

—Enabling DoD to acquire items that 

otherwise might not have been available 

to DoD; 

—Assisting DoD in the rapid 

acquisition and fielding of capabilities 

needed to meet urgent operational 

needs; and 

—Protecting the interests of the 

United States in paying fair and 

reasonable prices for the item or items 

acquired. 

This pilot program is designed to test 

whether the streamlined procedures, 

similar to those available for 

commercial items, can serve as an 

effective incentive for nontraditional 

defense contractors to (1) channel 

investment and innovation into areas 

that are useful to DoD and (2) provide 

items developed exclusively at private 

expense to meet validated military 

requirements. 

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